plaintiff might recover, if any; and when profits are claimed, especially to the
legal limitations which affect the right to recover damages for their loss.
Penn Iron Company (Limited) v. Diller for use of Stehman, Penn., 159.
14. Repetition of slander.] Evidence was admissible to prove that the
defendant repeated the slanderous words subsequently to the bringing of
the suit. Rea v. Harrington, Vt., 878.

15. Evidence of defendant's property - practice.] The plaintiff claiming
exemplary damages, it was error to exclude the defendant's evidence offered
to prove that he was a man of no property. But as the error could only affect
the exemplary damages, the judgment will be affirmed, if the plaintiff enters
a remittitur of such damages. Ib.

16. Mental sufferings.] It was proper to allow the plaintiff to testify as to
his mental sufferings caused by the slander, in effect, that he could not sleep
nights, could not work, etc. Ib.

17. Provocation.] The exceptions do not show error in excluding evidence of
provocation. Ib.

See AGENCY, 666; ASSUMPSIT, 682; CRIMINAL LAW, 211, 453, 674; DAMAGES, 773;
EJECTMENT, 360; FORMER ADJUDICATION, 146; FRAUD, 410; PARTNER-
SHIP, 74.

Opinion of witnesses.] See WILL, 12.

EXCEPTION.

See CRIMINAL LAW, 453.

EXCISE LAW.

Indictment - exception not, alleged.] Plaintiff in error was indicted and
convicted for selling strong and spirituous liquor and wines by retail, to be
drank in quantities less than five gallons without having a license therefor as
inn, tavern or hotel-keeper, Evidence was given upon the trial tending to
show that on or about the 3d day of May, 1881, at the town of Attica, in the
county of Wyoming, the defendant sold strong and intoxicating liquors in quan-
tities less than five gallous, to be drank on his premises, in Attica, aforesaid,
and that the same were so drank on his premises. It was admitted that he
had a license to sell strong and spirituous liquors in quantities less than five
gallons, not to be drunk upon the premises, known as a store-keeper's license.
A motion was made to quash the indictment because it did not state facts
constituting a crime, and because it did not state the exception provided for
by the law of 1869, authorizing the sale of ale and beer to be drunk upon the
premises of a person licensed, under that statute. Held, that the act of 1869
was to be read with, and construed with the excise law of 1857. The omission
to refer to the act of 1869, in fourth count of the indictment, was not an
error sufficient to hold the indictment invalid. If the plaintiff in error could
bring himself within the provisions of the act of 1869, he should have done
so by proof. People v. Jefferson, N. Y., 436.

EXECUTION.

Continuance of lien.] The lien acquired by a levy made under an execution
in the hands of a constable continues to within twenty days after the levy.
Appeal of Messner & Co., Penn., 8.

EXECUTORS AND ADMINISTRATORS.

1. Joint liability.] Where two or more executors receive the estate of their
testator jointly, and afterward file a joint account, they stand jointly liable
to the persons entitled to the estate for all the account shows to be in their
hands, Suydam v. Bastedo, N. J., 574.

2. Jurisdiction of equity-negligence.] A court of equity has jurisdiction
over the accounts of executors and administrators and over suits to enforce
the rights of legatees and next of kin. In cases where the liability of an
executor or trustee rests wholly on the ground of his negligence, the appro-
priate remedy to enforce such liability is by bill in equity. Ib.

3. Non-resident-trustee.] The non-residence of persons does not disqualify
them for the office of administrator if they are otherwise entitled.

Where

letters of administration have already been granted to the father of the de-
ceased they will not be revoked in favor of the widow, she being a non-resi-
dent of the State, and having failed to apply for them until after they had
been granted to the father. The trustee of a fund belonging to the estate
may act as administrator if otherwise qualified. Ehlen v. Ehlen, Md., 678.
4. Power of orphans' court to remove.] In Maryland, an executor or ad-
ministrator can only be removed by an orphans' court for legal and specific
causes, and after citation and an opportunity to be heard in opposition to the
motion. Levering v. Levering, Md., 689.

5. Surcharging executor failing to sell property till it had declined
in price-compensation of executor.] An executor retained certain
merchandise of his decedent which had been regularly appraised at $1,800;
in his account he charged himself with this appraised value. Exception was
filed to this, because he had not charged himself with what was alleged to
be the true value of the goods, $2,839.60, which true value was ascertained
from a paper filed, which paper was neither signed by any one, nor was it
qualified to. Held, that the regularly executed appraisement, which was
prima facie evidence of the value of the goods retained, would, in the ab-
sence of proof as to the actual value, be conclusive. A testator held one
hundred and seventy-eight shares of stock in a partnership, which, after his
draft, were appraised at $100 per share. The articles of association con-
tained a provision authorizing a majority of the stockholders, upon the death
of any member, to purchase the stock of the deceased at a valuation, to be
fixed in the manner pointed out in the articles. This valuation was made,
and the price fixed at $83 per share. The corporation took eighty-three
shares of the stock at that price, and the executor of the estate retained for
himself the remaining ninety-five shares at the same figure, charging himself
with the entire, at $83 per share. Held, that he should, under the exceptions
filed, be surcharged with the difference between the price at which he took
the stock and the appraised value, and also with interest from the time he
appropriated it. An executor held for the estate of his decedent certain rail-
road stocks which had been purchased by the decedent in his life-time; he
eventually, when the market was declining, disposed of them at a sacrifice,
lest they might drop lower; he at the same time sold his own similar secu-
rities at the same price. Held, that he should not be surcharged with the
loss sustained in the sale of the securities of his decedent. In the settlement
of a large and complicated estate extending through a number of years, held,
that a little over three per cent was not an excessive charge for the executor's
time, care, trouble and responsibility. The compensation of an executor is
due at the time the services are performed, and is to be deducted from the
balance before interest is computed. Appeal of John Stewart, Penn., 295.
See EQUITY, 369; WILL, 115.

FERRY.

See CONSTITUTIONAL LAW, 619.

FORECLOSURE.

See BOND, 38; LEASE, 190; MORTGAGE, 450, 673.

FOREIGN LAW.

See EVIDENCE, 52.

FORMER ADJUDICATION.

Evidence.] In a suit for damages for breach of a contract, defendant, for the
purpose of showing there had been a former recovery, offered and read in
evidence the recovery in a feigned issue between the same parties to decide
the right to a particular fund. Held, that the fact that plaintiff had on the
trial of the issue called the same witnesses and introduced the same evi-
dence, oral and written, that he did on the trial of the suit for damages,
would not alone and in the face of the respective records to the contrary, de-
termine the identity of the issues, and make the recovery upon the first a bar
to a recovery upon the second. Howe v. First National Bank of Corry,
Penn., 146.

FRAUD.

1. Constructive - deed - confidential relation - undue influence — onus probandi.] The fact that one standing in the relation to another of a near relative, or in loco parentis, has received a gift from such, or the benefit of a contract upon more advantageous terms than would have been granted to a stranger, will not warrant an inference that it has been procured by undue influence; but when there is any thing suspicious in the circumstances, or the nature and amount of the gift is such that it ought not to have been accepted even if freely tendered, the case is different and the onus is cast upon the relative or person standing in loco parentis of proving the righteousness of the transaction. A. being under the care of B., who had resided in his father's family from the time A. was an infant, and who, after the death of his mother, took sole charge of him, assuming the functions of housekeeper, servant, nurse, and later confidant, counseling and advising him in the management of his affairs up to and after the attaining of his majority, shortly after arriving at full age made a conveyance to B. of the greater and most profitable part of his estate for a nominal consideration. Held, that not only the nature and amount of the gift, but the suspicious circumstances attending, called upon B. to prove that the transaction was fair and honest and that the deed. was not procured by undue influence. Worrall v. Bailey,

Penn., 263.

2. Collusion-admission of evidence to establish.] In an action by A. against a sheriff, and C. who indemnified him, for an alleged illegal seizure and sale of certain goods as the property of B., the defense was, that the goods belonged to B., and that there was collusion between A. and B. to conceal the real ownership in order to defraud B.'s creditors. On the trial the defendants were allowed, on cross-examination, to ask B. if he had not said at a certain time and place that he bought the goods for himself, but in A.'s name, in order to keep them from his (B.'s) creditors; also to put in evidence the record of certain judgments against B. to show that he was heavily indebted when the goods were bought; also to show that B. had said he could not do business in his own name; and finally, defendants were allowed to ask C., who was plaintiff in the execution on which the levy was made, whether he had any conversation with B. about his business just previous to the purchase of the goods, and what it was. Held, that there was no error. The question being one of fraud, a wide latitude was properly given to the admission of evidence tending to establish it. Pfeil v. McCallen, Penn., 410. 3. Written lease parol evidence to change the effect of.] Fraud in the making of a written agreement may be shown by parol evidence to change its legal effect; the evidence, however, must be clear, precise and indubitable. Wolf v. Arrott, Penn., 156. See ACCEPTANCE, 78; EJECTMENT, 360; LANDLORD AND TENANT, 156; NEGOTIABLE INSTRUMENT, 441.

FRAUDULENT CONVEYANCE.

Fraudulent intent - knowledge of grantee - mortgage to secure bona fide debt.] Under the statute relating to fraudulent conveyances title 3, chap. 7, part 2, R. S. — the fact of the payment of a valuable consideration upon the transfer of property is not, as a proposition of law, inconsistent with the existence of an intent to defraud other creditors; and in the application of this principle no distinction can be made between a consideration furnished by an existing debt and that arising in any other manner. The fact that the consideration was an existing debt is simply a circumstance to be considered in determining the question of the intent. A mortgage given not only to secure a valid indebtedness, but also with the further intent on the part of both mortgagor and mortgagee to place the property of the mortga gor beyond the reach of his creditors, and at the same time secure to him the use and occupation thereof, is void as against the creditors of the mortgagor. A father, who was indebted to his son, offered to secure the amount due by giving a bond and mortgage upon certain real estate owned by him.

He made the bond and mortgage in suit with the intent to hinder, delay and defraud his creditors, and for the purpose of placing the land beyond their reach and securing a home for himself; and the son, with the knowledge of such intent, and with a like intent on his own part, accepted said bond and mortgage. In an action of foreclosure, the appellants, who became judgment creditors subsequent to the giving of the mortgage upon an indebtedness which existed prior thereto, defended upon the ground that the mortgage was fraudulent and void as to the creditors of the mortgagor. Held, that the mortgage was void. Billings v. Sawyer, N. Y., 850.

FRAUDULENT ASSIGNMENT.

See MORTGAGE, 450.
GIFT.

Distinction between a gift of land not enforceable and a contract with a consideration. Canfield v. Hard, Vt., 461.

GUARANTY.

Notice of acceptance.] In all cases of absolute guaranty accepted when given, whether for the extension of a present or the creation of a new indebtedness, notice of acceptance is not necessary to fix the liability of the guarantor; but where the event upon which the guaranty rests is future and depends upon the will of the guarantee, he must give notice of acceptance to the guarantor, before the latter becomes subject to any liability. Gardner v. Lloyd, Penn.,

149.

GUARANTORS.

See MORTGAGE, 125.

GUARDIAN AND WARD.

1. Revocation of appointment before approval of bond.] A. was appointed guardian of several minor children by decree of orphans' court in pursuance of petitions presented by the minors' "uncles and next friends." Before A.'s bond had been approved, or he had been qualified to serve, B., the father of said minors, presented his petition in the open court, setting out the death of the mother of said minors; that they lived with him; that the appointment of A. as guardian had been made without notice to him (B.); that A.'s relations with him were unfriendly, and the appointment was not a suitable one, but had been made to disturb the peace and harmony of his family. The petitioner, therefore, prayed that A. be dismissed, and some other person, satisfactory to B., be appointed. In pursuance of this petition the court entered a decree revoking A.'s appointment, and appointing C., whereupon A. appealed. Held, that there was no error. The appointment of A. was without notice to B., and, upon the court's becoming satisfied that said appointment was inadvisable, it had the right, before A. had qualified to serve, to revoke its former order, and put another person in his place. Besides A. did not occupy a position which gave him a right to complain. Me Cleary's Appeal, Penn., 363. 2. Bond-declaration amendment.] The declaration in a suit upon a guardian's bond may be amended by adding an averment that the interests of the persons, in whose behalf the action is brought, had been ascertained by a probate decree. A declaration is not bad for alleging that the action had been brought by the authority of the judge of probate when it is immaterial whether he assented to the bringing of the action or not. A guardian's bond is not converted to a common-law bond because it contains provisions not required by the statutory form which are in accordance with law. McFadden v. Hewitt, Me., 382.

HIGHWAY.

1. Dedication of] See In the Matter of rebuilding the bridge across the Shawangunk kill between the towns of Crawford and Shawangunk on Hardenburg's road, N. Y., 209.

VOL. III.- 119

2. Defective bridge -personal injury - contributory negligence.] Plaintiff sued the city of Syracuse for injuries alleged to have been sustained by reason of its negligence in leaving unprotected an opening in a bridge, through which he fell and was injured. The evidence disclosed that the accident occurred in the night-time, and that it was extremely dark; that the plaintiff was a stranger in the city, and knew nothing of the locality where he was wandering; that he had shortly before voluntarily left his companion, who had a lantern and was acquainted with the locality, and was to return with him to the depot; that the plaintiff, with apparently no purpose, then started down the street alone; and being misled by the reflection of a light on the water, walked through the opening and was injured. Held, that the facts did not admit of any reasonable inference that the plaintiff was free from contributory negligence. Cummins v. The City of Syracuse, N. Y., 198. 3. Laying out private road - description - commissioners' report.] Where the bed of an old road is referred to by commissioners in describing the course of a proposed new road, the center line of the old road-bed will be deemed the line intended. Where a private way has been used for many years until it has become fixed and certain, the termini of a proposed new road may be located with sufficient definiteness by a reference to it. In laying out a private road under the statute-chap. 174, Laws of 1853 - the description contained in the application is the controlling one, and determines the actual locus of the way to be laid out; but it is not essential that the description in the order filed by the commissioners should follow the language of the application, provided the description contained in the application is incorporated in the order by a reference to it, and the two descriptions are not irreconcilably repugnant. Satterly v. Winne, N. Y., 744.

4. Report of road viewers.] It is not absolutely necessary that the report of viewers in the matter of laying out a public road should show that previous notice of the view had been given to the owners of land and others interested in the location of the road; it may be shown by parol. When the court below finds it was properly given, the supreme court will presume it was found on sufficient evidence and not look behind that finding on a certiorari. Road in the Township of Washington, Penn., 310.

See MUNICIPAL CORPORATION, 551.

HOMESTEAD.

1. Equitable interest.] One may have a homestead in a house which he has erected on land occupied by him under a verbal agreement to convey, but such an agreement as a court of equity would decree to be performed; and under our statute he cannot relinquish his right by any oral statement or by acknowledging himself as tenant to one who claims under a mortgage executed by the original owner of the land after the erection of the house. Canfield v. Hard, Vt., 461.

2. No building on land.] There may be a right of homestead in land on which there is no building, but which is occupied as a part of the place of his home by the owner living in a hired house. Rogers v. Ashland Savings Bank, N. H., 53.

See EJECTMENT, 461.

HOMICIDE.

See CRIMINAL LAW, 661, 674.

ILLEGAL FEES.

Acts of March 28, 1814, and February 3, 1865-aldermen.] The act of February 3, 1865-P. L. 92 is an amendment to the act of March 28, 1814 P. L. 234. The later act did not repeal the earlier, except so far as its provisions were changed. The penal provisions of the act of 1814 remain Heinrich v. Venter, Penn., 409.

in force.

INDICTMENT.

See CRIMINAL LAW, 640, 661, 674; EXCISE Law, 436.